Summary
In Flint Explosive Co. v. Edwards, 86 Ga. App. 404 (71 S.E.2d 747), the petition in a tort action was based on two counts, one for ordinary negligence and one based on wilful and wanton conduct.
Summary of this case from Green v. WilkersonOpinion
33969.
DECIDED MAY 22, 1952. REHEARING DENIED JULY 3, 1952.
Action for damages; from Bainbridge City Court — Judge Drake. January 5, 1952.
W. H. Miller, S. B. Lippitt, for plaintiffs in error.
R. E. Wheeler, H. G. Rawls, Custer Kirbo, contra.
1. The court did not err in overruling the demurrers to counts two and three of the petition.
2. Where one count in a petition alleges simple negligence, and one alleges wilful and wanton conduct, and the court in its charge authorizes a verdict on one or both counts, but the evidence does not authorize a verdict on the latter count, a general verdict for the plaintiff is illegal and cannot stand.
DECIDED MAY 22, 1952 — REHEARING DENIED JULY 3, 1952.
This is the second appearance of this case in this court. Flint Explosive Co. v. Edwards, 84 Ga. App. 376 ( 66 S.E.2d, 368). Before the case was tried again the plaintiff amended the petition as it appeared when the case was here on the first appeal by designating such amendment count number one, and amended further by adding count two, charging simple negligence, and count three, charging wilful and wanton conduct. Count one was abandoned, and the case proceeded on counts two and three, which substantially alleged as follows: Count two: 3. That the defendant, E. I. duPont DeNemours Company, manufactures dynamite and dynamite caps, which are distributed together with fuses through dealers throughout the United States and foreign countries; that Flint Explosive Company is one of the dealers of E. I. duPont DeNemours Company and purchases from it dynamite, dynamite caps and fuses, which Flint Explosive Company in turn sells to the public in Decatur County, and the surrounding territory in Southwest Georgia. 4. That on November 7, 1948, petitioner purchased from Flint Explosive Company one case containing 100 sticks of dynamite, 100 dynamite caps, and 100 feet of fuse, all of which were manufactured or purchased for resale by E. I. duPont DeNemours Company. 5. That petitioner bought said dynamite, caps and fuse from the defendant, Flint Explosive Company, for the purpose of blasting stumps of trees on his land, which purpose was well known to the defendants. The defendant, Flint Explosive Company, was selling said dynamite, caps and fuses generally in Southwest Georgia for such purpose with the knowledge and approval of the defendant, E. I. duPont DeNemours Company. 6. That the defendant, Flint Explosive Company, represented to petitioner that said dynamite, caps and fuse were suitable for the purpose intended, and instructed him in the customary and ordinary use of said explosives, to wit: in each stick of dynamite, a cap was to be inserted and extending from the cap one foot of fuse, the end of the fuse farthest away from the cap inserted in the stick of dynamite to be ignited, and the dynamite inserted under the stump. One J. C. Barrett, an officer and agent who was in charge of Flint Explosive Company, instructed the plaintiff in the use of said articles and represented to him that the same were safe and efficient. 7. The fuse is sold by E. I. duPont DeNemours Company to the public through its dealers for the sole purpose of being used in connection with its dynamite and caps, and is intended to retard the acceleration of the spark from the point of ignition to the cap, thereby delaying the explosion and permitting the user to move outside the sphere of explosion before it occurs; the said fuse was sold to this petitioner by said Flint Explosive Company as a means of delaying said explosion and permitting him to remove himself to a place of safety before the explosion occurs. 8. Following the instructions given him, petitioner exploded ten sticks of dynamite prior to 11 a. m. on December 29, 1948, at which time he was engaged in blowing up stumps on his farm in Early County, Georgia, using the dynamite, caps and fuse purchased as aforesaid. 9. At the time and place aforesaid, petitioner cut off a foot of fuse, inserted one end of the fuse in the cap, and inserted the cap in a stick of dynamite in which he had punched a hole as instructed; petitioner thereupon struck a match and applied it to the end of the fuse farthest away from the stick of dynamite, whereupon the spark passed immediately from the ignited end of the fuse to the cap and there was an instantaneous explosion of the dynamite, blowing off petitioner's right hand and lower arm and wounding him in the right leg, deafening him in the left ear, damaging the sight of his left eye and resulting in severe head injuries from which he still suffers excruciating pain. 13. That petitioner's said injuries were the proximate result of the negligence of the defendants. 14. That petitioner was free from fault. 15. That the said J. C. Barrett, who was an officer, agent, and manager of Flint Explosive Company and who sold said dynamite, caps and fuse to plaintiff and instructed him in the use thereof, was incompetent, inexperienced, and unqualified to properly and safely handle and sell said articles and give instructions as to the proper use thereof. 16. At the time said defendant, Flint Explosive Company, first began handling the products of E. I. duPont DeNemours Company and through the date of the injuries, its officers and employees, and in particular J. C. Barrett, president, have been incompetent, inexperienced, and unqualified to handle, possess, or sell explosives and to properly instruct the users and the plaintiff in the use of said articles. By the exercise of ordinary care, defendant, E. I. duPont DeNemours Company, should have known of such incompetency. Nevertheless, E. I. duPont DeNemours Company negligently sold and distributed said explosives through the defendant, Flint Explosive Company, to the general public and to this plaintiff, which negligence contributed to and caused the injuries herein complained of. 17. The dynamite, caps and fuse sold to plaintiff and handled, distributed, and sold by defendants are designed and sold for combined use and recommended and delivered to the public and to this plaintiff for combined use for the purpose of blasting stumps and together constitute an inherently dangerous article or parcel. 18. The reasonable and prudent custom in the dynamite, cap and fuse industry in the United States recognizes and enforces, among others, three important rules to be followed in connection with the sale, distribution and use of said articles: 1.) To limit the number of people that are handling the explosives and thereby reduce the risk of accidents. 2.) That men who handle explosives should possess certain characteristics, knowledge, and experience, should be picked for intelligence and good sense, and should understand explosives — what is safe to do with them and what is dangerous — a kind of knowledge that can be gained only by experience and an absolutely green man should always be given definite instructions before he is allowed to handle explosives at all and then should work under the supervision of a careful, experienced man until he demonstrates that he can be relied upon not to endanger himself or his fellow workers. 3.) The regulations concerning safety must be enforced and strict supervision of the personnel involved in the sale, distribution, and use of said article must be maintained. 19. That in handling, selling, and distributing the said dynamite, caps and fuses to the public in Southwest Georgia and to this plaintiff, the defendants have negligently violated the customs of said industry and negligently failed to comply with any of said customs. 20. That it is also customary and necessary in said industry that the manufacturers, dealers, and handlers of explosives send to the consumers of their products technically trained field men to show the consumers, dealers, and distributors the safest and most efficient blasting practice. It is also customary, reasonable, and necessary in said industry that the manufacturers, dealers, sellers, and distributors make a periodical survey of the entire operations to determine all the hazards that exist under the specific local conditions and devise ways and means to remove the unnecessary hazards and train personnel to avoid accidents from hazards that can not be eliminated. 21. Said custom is reasonable and prudent and exists in the industry and is necessary to insure a degree of safety in the use of the dynamite, caps and fuse sold in the Southwest Georgia area and to this plaintiff. The defendant, E. I. duPont DeNemours Company, negligently failed to follow these customs and sold and permitted the defendant, Flint Explosive Company, to sell indiscriminately to the public generally and to this plaintiff without properly instructing the public or this defendant as to the use of said explosives. 22. Had the defendant, E. I. duPont DeNemours Company, exercised any supervision or made any follow-up of the use of the articles sold, it could by the exercise of ordinary care, have prevented the injury to this plaintiff. 23. The failure of the defendants to exercise care and their negligent conduct in manufacturing, selling, and distributing and handling said articles was the direct cause of the injury to plaintiff. 24. The reasonable, prudent, and ordinary customs of the dynamite, cap and fuse industry, in which the defendants are engaged, require that the manufacturers and distributors use only competent distributors and dealers to sell to the general public. The defendants negligently permitted said articles to be sold in the Southwest Georgia area and to this plaintiff by incompetent and unqualified dealers. 25. The defendant, E. I. duPont DeNemours Company and Flint Explosive Company jointly concurred in the negligent acts above alleged and jointly caused the injuries.
Count three: 2. Same as par. 2, count one. 3. Same as par. 3, count one. 4. That Flint Explosive Company has failed to register with the Ordinary of Decatur County the amount of explosives, including dynamite, on hand at any time since it has been doing business in Decatur County and has failed to obtain from said ordinary a license authorizing said defendant corporation to possess and control the same, as provided by the terms of Chapter 88 of the Georgia Code. 5. That on November 7, 1948, petitioner purchased from Flint Explosive Company one case, containing 100 sticks of dynamite, 100 dynamite caps, and 100 feet of fuse. 6. Same as par. 5, count two. 7. Substantially same as par. 6, count two. 8. Same as par. 8, count two. 9. Same as par. 9, count two. 10. Substantially same as par. 15, count two. 11. The defendant, Flint Explosive Company, has not and could not quality for a license to possess, control, and sell explosives under the terms of Chapter 88 of the Annotated Code of Georgia, 1933. 12. Same as par. 16, count two. 13. Same as par. 17, count two. 14. Same as par. 18, count two. 15. That in handling, selling, and distributing the said dynamite, caps and fuses to the public in Southwest Georgia and to this plaintiff, the defendants have brazenly, wilfully, and wantonly violated the customs of said industry and failed to comply with any of said customs. 16. Same as par. 20, count two. 17. Substantially same as par. 21, count two. 18. Had the defendant, E. I. duPont DeNemours Company, exercised any supervision or made any follow-up of the use of the articles sold, it could have prevented the injury to the plaintiff. 19. The wilful failure of the defendants to put in practice the prudent customs of the industry, and the wanton and wilful conduct in selling, distributing, and handling said articles was the direct cause of the injuries to the plaintiff. 20. The reasonable, prudent, and ordinary customs of the dynamite, cap and fuse industry in which the defendants are engaged requires that the manufacturers and distributors use only competent distributors and dealers to sell to the general public. The defendants wilfully permitted said articles to be sold in the Southwest Georgia area and to this plaintiff by incompetent and unqualified dealers. 21. The defendants, E. I. duPont DeNemours Company and Flint Explosive Company jointly concurred in the acts above alleged and jointly caused the injuries. 22. The defendant, E. I. duPont DeNemours Company, maliciously and wilfully procured the Flint Explosive Company to sell and distribute articles knowing that said Flint Explosive Company, its officers and employees were inexperienced, incompetent, and unqualified to properly and lawfully sell and distribute said articles and to instruct this plaintiff in the safe and proper manner to use the same. 23. The defendant, E. I. duPont DeNemours Company, maliciously and wilfully procured the defendant, Flint Explosive Company, to sell said articles to the plaintiff in violation of Chapter 88 of the Annotated Code of Georgia, 1933, knowing that the said Flint Explosive Company had not and could not qualify for a license under said chapter. 24. The said malicious conduct on the part of the defendant, E. I. duPont DeNemours Company, contributed to and caused the said injuries to plaintiff. 25. That the plaintiff was free from fault.
The plaintiff further amended counts two and three by alleging that the acts of each and both defendants were the direct and proximate cause of the injuries sustained by the plaintiff.
The defendants demurred to counts two and three as follows: To count two, generally, because no cause of action is alleged; specially, to paragraphs 18, 20, and 21, because they are irrelevant and immaterial, are erroneous conclusions of law, are conclusions and opinions of the pleader without allegations of any facts to sustain them, are too vague and indefinite, and fail to show that said alleged acts, or any or either of them, were a proximate cause of any injuries or damages to the plaintiff, and for these reasons said paragraphs should be stricken.
To count three, generally, because no cause of action is alleged; specially, to paragraphs 4, 11, 14, 15, 16, 17, 18, 19 and 23, because they are irrelevant and immaterial, are erroneous conclusions of law, are conclusions and opinions of the pleader without allegations of any facts to sustain them, are too vague and indefinite and fail to show that said alleged acts, or any or either of them, were a proximate cause of any injuries or damages to the plaintiff, and for these reasons said paragraphs should be stricken.
The court overruled all general and special demurrers to counts two and three as finally amended, and the defendants excepted pendente lite.
After all evidence was introduced and both sides had announced closed, the defendants moved the court to require the plaintiff to elect whether he would proceed on count two or count three, on the ground that the counts set forth inconsistent causes of action. The court overruled the motion and the defendants excepted pendente lite. The jury found a general verdict in favor of the plaintiff against both defendants. The court denied the defendant's amended motion for a new trial. They except to the denial of their motion to require the plaintiff to elect on which count he would proceed, to the overruling of their demurrers, and to the denial of their motion for a new trial.
1. The plaintiffs in error insist on only one reason why the general demurrers to counts two and three should have been sustained, and that is that these counts allege that the plaintiff was instructed to place the dynamite under the stump before lighting it; and that, since he further alleged that he did not follow such instructions, but lighted the dynamite while it was still in his hand, he was, therefore, barred by his own negligence. The plaintiffs in error contend that the petition as it appeared on the prior appeal had a different meaning from the allegations with reference to this particular matter as they now appear in counts two and three. This contention is without merit for two reasons: The wording of the original petition, interpreted on the prior appeal, and the wording, as to this matter, in counts two and three are identical. They are that the plaintiff was instructed as follows: "In each stick of dynamite, a cap was to be inserted and extending from the cap one foot of fuse, the end of the fuse farthest away from the cap inserted in the stick of dynamite to be ignited, and the dynamite inserted under the stump." This court on the prior appeal interpreted this allegation to mean that the instruction was that the fuse be lighted before it was placed under the stump. The court paraphrased the allegation and inserted the word "was" before the phrase "to be ignited," and such interpretation becomes the law of the case, inasmuch as the alleged improper instruction was a primary element in the showing of negligence, and such an interpretation precluded the holding that the plaintiff was barred by his negligence in violating instructions. Furthermore, such an interpretation is the only reasonable interpretation to be placed on the language under discussion insofar as the time when the fuse was to be lighted is concerned. It would be a far-fetched and strained construction to construe the allegations to mean that the reference was to the dynamite's being ignited rather than the end of the fuse. The fact that one of the attorneys for the plaintiff stated in his opening argument that the allegation meant what the defendants contend it meant would not alter the case. Further on in his opening statement, the counsel for the plaintiff made other statements inconsistent with the one just referred to and showed that the former was due to carelessness or inadvertence. At any rate, the defendants were not prejudiced or misled because the case was tried on the theory that the instruction given was that the fuse was to be lighted before the dynamite was placed under the stump. The court did not err in overruling the general demurrers to counts two and three.
2. The special demurrers to counts two and three were properly overruled. By amendment the plaintiff alleged that the acts alleged constituted the proximate cause of the injuries to the plaintiff. In view of the ruling of this court on the prior appeal, we cannot now say that the matters referred to in these demurrers were as a matter of law not a proximate cause of the injuries.
3. In view of the fact that this case is being reversed in effect because count three was not supported by the evidence, we deem it unnecessary to rule on ground "G" of the amended motion.
4. In view of the reversal of this case, it is not necessary to pass on the question whether or not the court erred in refusing to give a requested charge on the care which should have been exercised by the plaintiff.
5. There are various grounds of the amended motion assigning error on the court's refusal to give requested charges, each of which requested the withdrawal of some specification of negligence from the consideration of the jury. In view of the fact that most of these grounds involve matters relating to the third count of the petition, and in view of the fact that the case will probably be tried again, we do not think that any useful purpose will be served by ruling on these assignments of error.
6. Error is assigned on the verdict as being contrary to law and void, in that it failed to state upon which count the jury found a verdict, and that the evidence did not authorize a verdict on both counts. We think that this assignment is meritorious. The evidence is voluminous and we do not propose to set it forth in detail. We do not think that the evidence supported a finding that the defendants were guilty of wilful and wanton misconduct. Where "the evidence shows that the plaintiff is entitled to have a recovery for one of the tortious acts alleged to have been committed, and is not entitled to recover for the other of such alleged acts, and under the charge of the court the jury could have properly based their verdict on either one or both, and a verdict finding a gross sum for the plaintiff was returned, it can not legally stand, because of the uncertainty as to whether it was rendered in satisfaction of the tortious act proved or that submitted which was not proved." Southern Railway Co. v. Hardin, 107 Ga. 379, 380 ( 33 S.E. 436); Blanchard v. Tucker, Willingham Co., 34 Ga. App. 405, 406 ( 129 S.E. 908). Under the principles announced in this case on the prior appeal, we do not think that the evidence is sufficient to show that either defendant knew that his conduct would inflict injury, or that on account of any attendant circumstances which were known to them, or with knowledge of which they were chargeable, the inevitable and probable consequences of their conduct would be to inflict injury, and with reckless indifference to the consequences of their conduct, they committed the acts charged or omitted to do their duty to avoid the threatened injury. The conduct proved does not show a wantonness equivalent in spirit to actual intent. Lanier v. Bugg, 32 Ga. App. 294, 297 ( 123 S.E. 145); Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562, 565 ( 63 S.E. 642). The plaintiff contended that J. C. Barrett, an officer and agent of Flint Explosive Company, sold the dynamite, caps and fuse to him and instructed him how to use them; but the evidence did not support the charge that Barrett was incompetent, inexperienced, and unqualified to properly and safely handle and sell said articles and give instructions as to the proper use thereof. There was no evidence to support the charge that Flint Explosive Company had not and could not qualify for a license to possess, control, and sell explosives under Chapter 88 of the 1933 Code. There was no evidence that duPont maliciously and wilfully procured Flint Explosive Company to sell dynamite to the plaintiff knowing that it had not and could not qualify for a license and knowing that its employees were incompetent, inexperienced, and unqualified to handle, possess or sell explosives. There was no evidence to support the charge that in handling, selling, and distributing dynamite, caps and fuses to the public and plaintiff, the defendants have brazenly, wilfully, and wantonly violated the customs of the industry and wilfully failed to comply with any of said customs. There was no evidence that the employees and officers of Flint Explosive Company did not know the correct procedure for selling, handling, and exploding dynamite, or that duPont had any actual knowledge that Flint was selling it to persons inexperienced in handling it, or that Flint was selling and giving erroneous instructions as to how to explode it. In short, the evidence does not show a conscious indifference amounting to wantonness or actual intent to expose another to a known danger, especially the danger it was contended caused the injuries.
We are not passing on the question whether the evidence was sufficient to authorize a finding of simple negligence against duPont. Just what the duties of duPont were under the rules and customs of the industry to supervise, inspect, investigate, and instruct, etc., and whether a violation of these duties, whatever they were, was a proximate cause of the plaintiff's injuries, is subject to considerably more clarification. It goes without saying, of course, that if Barrett gave the instructions he is charged with giving, a finding that he was negligent would be authorized, and his negligence would have to be compared with the negligence of the plaintiff if he was negligent in any degree. Neither are we passing upon the question as to whether the evidence shows that it is possible or reasonably probable that the dynamite cap could have been exploded by a spark from the end of the fuse as contended by the plaintiff, especially in view of the plaintiff's testimony that the cap and fuse were tightly inserted. It is hoped that these two controlling issues will be clarified by additional evidence on another trial.
The court did not err in overruling the demurrers. The court erred in overruling the motion for a new trial.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.